I'm a privacy pragmatist, writing about the intersection of law, technology, social media and our personal information. If you have story ideas or tips, e-mail me at khill@forbes.com. PGP key here.
These days, I'm a senior online editor at Forbes. I was previously an editor at Above the Law, a legal blog, relying on the legal knowledge gained from two years working for corporate law firm Covington & Burling -- a Cliff's Notes version of law school.
In the past, I've been found slaving away as an intern in midtown Manhattan at The Week Magazine, in Hong Kong at the International Herald Tribune, and in D.C. at the Washington Examiner. I also spent a few years traveling the world managing educational programs for international journalists for the National Press Foundation.
I have few illusions about privacy -- feel free to follow me on Twitter: kashhill, subscribe to me on Facebook, Circle me on Google+, or use Google Maps to figure out where the Forbes San Francisco bureau is, and come a-knockin'.

Bengals Cheerleader Who Sued The Dirty For Ruining Her Reputation Now Facing Reputation-Ruining Charges

Bengals cheerleader Sarah Jones now has an uphill climb with her defamation suit

Sarah Jones, a high school English teacher and cheerleader for the Cincinnati Bengals, has been fighting a legal battle against gossip website TheDirty.com after it published a post, titled “The Dirty Bengals Cheerleader,” in which a Dirty.com commenter alleged that Jones had slept with all the members of the Bengals team and had STDs. Site proprietor Nik Richie quipped “Why are all high school teachers freaks in the sack?” Jones sued, alleging defamation, libel, and invasion of privacy, saying that students at her school had seen the post and commented on it, and that it had ruined her reputation.

Jones’ case against The Dirty was slated to go to trial this June, but now Jones has run into some legal trouble of her own. This week her reputation is being questioned by prosecutors instead of gossip bloggers. WPTV reports that Jones is facing criminal charges for allegedly having sex with a minor. She was indicted Thursday for “first degree sexual abuse and unlawful use of electronic means to induce a minor to engage in sexual or other prohibited activities.” She has since resigned from Dixie Heights High School. It sounds as if it could be a case of a Facebook friendship between a teacher and a student that evolved from digital pokes to the offline equivalent.

Back in 2010, Jones actually won a $11-million default judgment in her case, but her cheers quickly died down when it turned out that her lawyer had sued the wrong website (TheDirt.com instead of TheDirty.com). Thus, her lawyer had to file suit a second time, against the right company. In January, a judge ruled that the suit alleging defamation and invasion of privacy could go to trial, and that TheDirty.com was not protected by the Communications Decency Act, which usually shields website from liability for what their commenters write.

“This Court holds by reason of the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie, the defendants have specifically encouraged development of what is offensive about the content of the site,” wrote Judge William Bertelsman.

Some judges, like Bertelsman, have been hinting at a desire to carve out a space in the Communications Decency Act to make sites dedicated to slander more responsible for the content they post. Sarah Jones has been on national news shows such as 20/20 and Anderson Cooper 360 talking about the unfairness of people like Richie getting to profit from publishing terrible gossip about people while hiding behind the shield of the CDA. From the Anderson Cooper show:

“One day I was this credible teacher that they looked up to and listened to,” says Jones. “The next day I was a slut to them. I had a student come in and say I cannot come into my classroom and learn because you had sex in here and you’re a slut.”

Jones says she had to have a conversation with the 15-year-old students in her class to clear her name — telling them she did not have an STD and does not sleep around.

Awkward.

“I don’t teach elementary school. I teach high school,” says Jones. “These kids Google me. They see things. If it’s on the Internet, it’s real to them. They believe it.” Regardless of trying to clear her name, parents told Jones that they did not want their children in her class.

Now that Jones will be dealing with her own legal difficulties, I don’t know what the fate of her lawsuit against TheDirty.com will be. It likely won’t help her case that the comments on Richie’s site now look more like a warning to school officials than like pure gossip.

Post Your Comment

Post Your Reply

Forbes writers have the ability to call out member comments they find particularly interesting. Called-out comments are highlighted across the Forbes network. You'll be notified if your comment is called out.

Comments

A reality of libel litigation, and one most plaintiffs do not fully understand before filing suit, is that a libel plaintiff also ends up on trial and is forced to defend their past; a past that is reviewed and parsed with a fine tooth comb aided by 20/20 hindsight. Libel defense lawyers know that a plaintff’s previously unknown past, even if totally unrelated to the alleged libel, may nonetheless be admissible on the issue of reputational harm and damages. And, even if not ultimately admissible at trial, past indiscretions and character flaws are nonetheless discoverable and thus become part of the public litigation record displayed for all to see. Unless you are a nun or otherwise have led a very boring and squeaky clean life, being a libel plaintiff is a status fraught with peril. This is particularly true in today’s web 2.0 world where everything is easily posted and retrievable on the internet. Unfortunately, a libel plaintiff is not unlike the woman in a criminal case who claims she has been raped and is forced to reveal and defend her sexual history and practices.

In this instance,however, in seems it was Sarah Jones’ present and not her past that will end up being her undoing. Her indictment on sexual misconduct charges (assuming the conduct occurred after the alleged defamatory statements were published) is completely irrelevant to her cilvil libel case, at least in a court of law. The court of public opinion, however, is another story. Her days as an innocent and sympathetic victim of a nasty gossip site, making the rounds of the national news shows, are long gone. I suspect her civil suit will be long gone before too long, as well. She will decide it simply is not worth the price. Besides, she has more pressing things to worry about now.

P.S. You were very nice to Ms. Jones by using her official Bengals Cheerleader photo, rather than her Kenton County jail mug shot.

It is a classic photo. She looks like death warmed over or maybe her evil twin sister. Someone should publish an oversized coffee table book comparing celeb booking photos with their promotional photos. It would be an instant best seller!

Yeah, frankly- it is hard for her to show reputational damage when she was doing the dirty with her high school students who respected her so much. Even if it occured after the web postings, the fact is that any reasonable person would say that a conviction for being a statutory rapist is a lot worse than rumors of being a slut.

Also clearly, part of her defense is that the kids believe what they read online. Apparently at least one of the young men in her class wasn’t afraid of her having STDs….

Now, a more interesting question would be whether the posting on TheDirty led to her the statutory rape. I can just see an lawyer trying to connect the dots saying that the posting necessarily led to discussions of her sexuality with her students, and that this discussion was a necessary condition which opened the door to the inappropriate relationship. In our society that likes to ignore personal responsibility for anything, I can almost imagine that working, at least in the court of public opinion.

As the lawyer for www.thedirty.com, I’m equally interested in seeing how this unusual twist of an after-the-fact criminal case will affect the pending civil case. To my knowledge, this is an unprecedented situation so it actually might present a matter of first impression for the Kentucky courts.

As far as I know, there is no such thing as a theory of “the-devil-made-me-do-it” in either defamation or criminal law. As such, I don’t think it’s possible to argue that the post on TheDirty which gave rise to the civil case subsequently “caused” the events which gave rise to the criminal case. That’s certainly an interesting argument though.

Having said that, if the criminal charges are proven, then my view is that the civil case cannot continue because even assuming the posts on Nik’s site were false, they would have caused no incremental harm and thus Ms. Jones would have no right to remedy them with damages. The logic goes something like this:

“Tort law does not seek to prevent injuries arising from the dissemination of truthful information that rationally induces withdrawal of patronage from the person whom the information concerns. So [a plaintiff], had he proved a wrong, would have had to partition the injury resulting from it between the part due to the revelation of truthful information and the part due to the [allegedly false statements]. Compare the many cases which hold that the victim of defamation can obtain damages only for incremental harm done to his reputation by the defamation-if his reputation has already been destroyed by truthful information, he has no remedy.”

Had the current allegations had surfaced at the same time that your client was allegedly defaming the character of the plaintiff, then your point would be perfectly appropriate. However, the reality is that this latest allegation against the plaintiff is taking place a number of years after the alleged conduct of your client. This is a direct quote from the one you provided: “if his reputation has already been destroyed by truthful information, he has no remedy.” The key word there is “already”. Whether or not she has now ruined her own reputation from this point forward, your client, should he be found to have indeed defamed her character, is still liable for any and all damages to her reputation that she sustained during the interim between his alleged conduct and hers. Furthermore, should she be found innocent of the charges levied against her, the plaintiff in your case could further argue that damage caused to her reputation by your clients alleged conduct would have created a bias in the public opinion that made it easier to believe that her current charges are true, thus adding additional damages to her initial claim.

I didn’t attempt to brief the entire legal argument which would apply in this admittedly bizarre situation, so your confusion is understandable. However, we have reason to believe that the student Ms. Jones was allegedly involved with in this matter was NOT the first instance of such conduct for her. If that is true (and right now I do not know either way because the court has not allowed us to pursue discovery into that issue until the criminal case is over), then my legal argument was entirely correct — she can’t sue for damage to her reputation based on the posts on my client’s website when she was already hiding a much darker secret.

Put simply, the law does not allow any person to seek damages in a defamation case when there is something TRUE in their background (even if it was secret or unknown at the time) which was equally or more damaging to them then the false statements they are suing over. In other words, the courts have explained the rule as follows:

A person does not have a legally protected right to a reputation based on the concealment of the truth. This is implicit in the rule that truth–not just known truth — is a complete defense to defamation. And the burden of proving falsity rests on the plaintiff.

This rule, and others like it, are a big part of the reason why it’s almost always a bad idea to sue for defamation, particularly when it’s based on something posted online. Unless the plaintiff is an absolute saint without any skeletons in his/her closet, their past can be investigated and used to show that their “good” reputation was really just an accident.

P.S. My client did nothing to “defame” Ms. Jones — a third party posted material on my client’s website that she claimed was false, but rather than suing the person who actually wrote these posts, she sued my client instead (which would be like me suing Forbes because I didn’t like something that you wrote). Anyway, time will judge what to make of this matter, and we’re looking forward to that day….

One other thing I forgot to mention…in response to this part of your comment –

“Furthermore, should she be found innocent of the charges levied against her, the plaintiff in your case could further argue that damage caused to her reputation by your clients alleged conduct would have created a bias in the public opinion that made it easier to believe that her current charges are true, thus adding additional damages to her initial claim.”

Don’t forget — the standards for criminal and civil cases are VERY different, so even if Ms. Jones were to “win” the criminal case, this does NOT mean she would automatically win the civil case. Think about it this way — OJ Simpson “won” an acquittal in his criminal case but a civil jury subsequently found against him in a civil wrongful death action. This occurred because the courts use very different standards for civil vs. criminal cases so an acquittal in a criminal case does not preclude a civil jury from reaching exactly the opposite result.

This difference in standards really only benefits TheDirty.com and it could result in two possible outcomes here.

First, if Ms. Jones is convicted in the criminal case, then obviously she could not dispute the fact of her conviction in the civil case. If that happened then for the reasons I already explained I believe this would require the dismissal of her civil claims. While I appreciate your argument that maybe a jury could still award her damages for the harm that occurred between the two events, this overlooks the fact that she did not actually suffer any harm (at least not economically) until the criminal charges were filed. Prior to that time, she did not lose her job, was not removed from the Ben-gals squad, etc.; none of those adverse consequences occurred until the State of Kentucky indicted Ms. Jones.

Second, even if Ms. Jones is acquitted or found “not guilty” in the criminal case (there is generally no such thing as being “found innocent” in a criminal case), a jury in the civil case would still be free to reach a different result….just like they did in the OJ Simpson case. This means a jury in the civil case could review the evidence and find that even if Ms. Jones was acquitted in the criminal case, they believed that she did in fact, engage in an improper relationship with her student. If the civil jury reached that conclusion, then once again I believe the law would prohibit Ms. Jones from prevailing in her case against TheDirty.com.

Of course, all of these points are merely hypothetical at this time, so let’s wait and see how this all plays out.